Zoom May Be 'SNL'-Ready. But How About for the Justice System?

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As COVID-19 prompts continued social distancing, some are trying to adapt to the new reality while others insist on waiting for normality to return. Take, for example, a hot privacy dispute involving the Weather Channel app.

More than a year ago, the Los Angeles City Attorney's Office brought a rather shocking lawsuit on behalf of California citizens. According to the complaint, The Weather Channel's mobile app was secretly collecting the geolocation data of its users and then selling the information to third parties including to hedge funds interested in analyzing consumer behavior. Since the case was filed in January 2019, it has been quietly ticking toward a trial in early 2021. Now, however, comes a health crisis that has disrupted legal proceedings everywhere. Must the justice system always take a back seat to a pandemic, or can it accommodate a new reality? A new motion from IBM — owner of the app and defending the lawsuit — may provide some partial guidance.

IBM, accused of unlawfully profiting on the tracking technology, now seeks to force the L.A. City Attorney's Office into the digital age. Specifically, the defendant asks a judge to compel remote depositions.

"Defendants recognize that this is an unusual motion, and that the parties — like litigants nationwide — are facing extraordinary circumstances," write IBM's lawyers at Quinn Emanuel (see here). "But Plaintiff has taken an unworkable position that will inevitably (though unnecessarily) result in undue delay and other consequences. Plaintiff refuses to proceed with depositions of Defendants' witnesses — who are located in New York and Atlanta — until, at a minimum, California's current 'stay-at-home' order is lifted."

The motion comes as others throughout the nation are making the best of their new situations. Forced to physically distance themselves from colleagues, many are using Zoom even if the video conferencing technology is facing its own questions (and class-action suits) over privacy and security. Zoom was good enough for Saturday Night Live this weekend, and the experiment in group-chat comedy has earned warm reviews. That said, it wasn't really live. As THR critic Daniel Feinberg notes, "Anybody who had dealt with scattershot technology in the past month can understand why nobody wanted to risk the show's careful pacing on a Google Hangouts connection."

Should lawyers?

The question is slowly coming up for judges throughout the nation. In Florida, for instance, one federal court is wrestling with the potential for a "virtual trial" later this month. The plaintiffs in the case (ex-prisoners attempting to reclaim the right to vote without paying fines) aren't particularly concerned by the state's warning how "Zoom bombing" could disrupt the trial.

Even the famous Luddites at the Supreme Court are getting with the program. On Monday, the high court announced that more than a dozen previously postponed oral hearings would now proceed with justices and attorneys participating remotely. A live audio feed will be provided to the news media. This is hardly a webcast that many have long desired, but it's a start.

As for the privacy dispute over The Weather Channel, defense attorneys are portraying the need to immediately proceed to remote depositions as an issue of fairness.

"Witnesses' memories fade," states the motion. "Employee turnover is inevitable to some extent — particularly during economic turmoil — and may make it more difficult to locate or prepare witnesses months in the future. And it is extremely inefficient to create a months-long gap between the close of document discovery and depositions. Defendants should not have to re-prepare the same witnesses months from now when those witnesses could be deposed remotely in the coming weeks. In short, pegging the beginning of depositions to an uncertain and potentially shifting future date is not a practical solution to a real problem that litigants everywhere must find ways to resolve."

In a letter in late March, L.A. Deputy City Attorney Adam Teitelbaum explained why his office was unwilling to proceed with depositions using teleconferencing technology. To accomplish the feat would require effective technology not only for lawyers and witnesses, but also for a court reporter and a videographer. He raised concerns with the ability to share exhibits, of having vendors responsive to troubleshoot issues given the unprecedented demand for their products, of having participants with high-speed connections and high-quality webcams, and so forth. (See Exhibit B.)

A follow-up letter rejected any legal basis for proceeding with depositions under Gov. Gavin Newsom's executive order for people to stay at home. In an attempt to avoid the issue altogether, the L.A. deputy city attorney then attempted to withdraw deposition notices.

Now, Los Angeles Superior Court Judge Mark Mooney is faced with what could be a first of its kind decision in the midst of the COVID-19 pandemic.

IBM says it is flexible with regard to which technological platform is used and how much time is needed for each deposition.

The motion adds, "Just as Plaintiff would prefer to take depositions in person, Defendants would prefer to prepare their witnesses and defend the depositions in person. But the perfect cannot be the enemy of the good in situations like this, and because remote depositions provide a workable solution that does not unfairly favor either side, the parties should move forward with them."